Scope and History of Section 212(f) Presidential Authority to Suspend/Restrict Entry by Proclamation

 

Introduction

History of Section 212(f)Section 212(f) of the Immigration and Nationality Act (INA) gives the President of the United States broad authority to implement immigration restrictions by proclamation. The statute allows the President to suspend the entry of any aliens or of a class of aliens or place restrictions on the entry of a class of aliens temporarily if he or she determines that the entry of such aliens would be detrimental to the U.S. interest.

In this article we will examine the language of section 212(f), its scope, and previous uses of the statute as well as precedent case-law on the provision. Please see our separate article to learn about the Attorney General's authority to suspend the entry of aliens arriving on an airliner due to the airliner's failure to meet certain screening requirements, also found in section 212(f) [see article].

The section 212(f) provision has gained notoriety recently due to the issuance of President Donald Trump's Executive Order (EO) (Executive Order 13769) titled “Protecting the Nation from Foreign Terrorist Entry Into the United States” (82 FR 8977 (Jan. 27, 2017) [PDF version]). To read more about the legal issues regarding the EO's invocation of section 212(f), please see our full article [see article].

Statute

Section 212(f) of the INA reads as follows:

f. Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Section 212(f) can be roughly broken into two halves. The first half explains the President's power to issue a proclamation temporarily halting or restricting the entry of any aliens or of a class of aliens. The second half explains the Attorney General's power to prevent the entry of aliens traveling on a commercial airline that has failed to comply with the legal requirements for detection of fraudulent documents used by passengers traveling to the United States. In the following sections, we will discuss the President's power to issue proclamations under section 212(f). For our discussion of the Attorney General's power to suspend the entry of aliens carried by a certain commercial airliner, please use the following link [see article].

Presidential Proclamation Suspending or Restricting Entry

In order to restrict entry of any aliens or of a class of aliens under section 212(f), the President must find that the entry of such aliens or class of aliens into the United States “would be detrimental to the interests of the United States.” If the President makes such a finding, he or she may issue a proclamation restricting or suspending the entry of aliens from such class.

Section 212(f) gives the President the authority to suspend or restrict the entry of any aliens or of a class of aliens “for such period as he shall deem necessary.” Therefore, section 212(f) does not place any restrictions on the duration of a suspension or restriction.

Section 212(f) provides the President with two options regarding the entry of a class of aliens that he or she determined to be detrimental to the interests of the United States. First, the President may suspend the entry of such aliens “as immigrants or nonimmigrants.” Alternatively, rather than suspend the entry of such aliens, the President may impose restrictions on the entry of aliens as he or she may deem to be appropriate.

Guidance in the Foreign Affairs Manual

There is limited case-law and administrative guidance on section 212(f). The issue is addressed by the United States Department of State (DOS) in its Foreign Affairs Manual (FAM). Before continuing, it is important to note that the FAM is only applicable to DOS officers, and does not by itself constitute binding law, much less limitations on the President's authority.

At 9 FAM 302.11-3(B)(1) (U) [link], the DOS explains that a Presidential Proclamation issued under section 212(f) “typically grants the Secretary of State authority to identify individuals covered by the presidential proclamation and waive its application for foreign policy or other national interests.” While Section 212(f) itself contains no provision for such a waiver, as the DOS notes, Presidential Proclamations “typically” include waivers in their text.

The DOS adds that Presidential Proclamations issued under section 212(f) usually cover individuals under one of two ways:

  1. Affiliation with a group; or
  2. Objectionable conduct.

The DOS notes that individuals covered by a Presidential Proclamation issued under section 212(f) are sometimes inadmissible to the United States under other sections of the INA. The FAM instructs DOS officers to first ascertain whether an individual who may be covered by section 212(f) is inadmissible on other grounds. As an example, the FAM cites to Presidential Proclamation 7750 issued by President George W. Bush [see 69 FR 2287]. Presidential Proclamation 7750 was a relatively broad use of section 212(f) that covered certain aliens who had engaged in or benefitted from certain public corruption. The FAM explains that if an alien who may be subject to Presidential Proclamation 7750 has one or more criminal convictions rendering him inadmissible under section 212(a)(2) of the INA, the alien would be denied entry based on inadmissibility under section 212(a)(2) rather than under the Presidential Proclamation.

Judicial Precedent Regarding Scope of the Presidential Proclamation Power

The language of section 212(f) appears to vest the President with very broad authority to suspend or restrict immigration of any aliens or of a class of aliens by Presidential Proclamation. In limited case-law, Courts have thus far not identified or defined any limits on the President's section 212(f) authority.

The Supreme Court addressed section 212(f) once in Sale v. Haitian Centers Council, Inc., 509 U.S. 2549 (1993) [PDF version]. Sale concerned Executive Order 12807 (57 FR 23133, Jun. 1, 1992), wherein President George H.W. Bush ordered the suspension of entry for aliens coming to the United States by sea without proper documentation, and for the interdiction of certain vessels carrying such aliens. The Supreme Court held that the EO, issued on the basis of section 212(f) as well as other provisions, did not violate the INA's provision for withholding of removal or the United States' obligations under the United Nations Convention Relating to Status of Refugees applied to actions taken by the Coast Guard on high sees in enforcing the EO.

In Haitian Refugee Center Inc., v. Baker, 953 F.2d 1498 (11th Cir. 1992) [PDF version], the Eleventh Circuit issued a decision addressing President Ronald Reagan's Executive Order 12324 (46 FR 48109, Sep. 29, 1981), which also concerned the suspension of entry of aliens coming to the United States by sea without proper documentation (EO 12807 replaced this EO). In this decision, the Eleventh Circuit held that aliens who had been interdicted on the high seas under the EO had no right to judicial or administrative review. Regarding the scope of section 212(f) itself, the Eleventh Circuit stated that it “clearly grants the President broad discretionary authority to control the entry of aliens into the United States.”1

In 1950, the Supreme Court in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) [PDF version] held with regard to a pre-INA statutory scheme that contained similar provisions that “there is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” This passage was cited to by the U.S. District Court for the Northern District of California in Encuentro Del Canto Popular v. Christopher, 930 F.Supp 1360 (N.D.Cal. 1996) [PDF version].2

In a footnote to the D.C. Circuit decision in Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) [PDF version], the Court stated that section 212(f) ensures that “the Executive would not be helpless in the face of such a threat” of an alien who posed a danger to the United States but was not excludable under the statutory scheme that existed at the time.3 The footnote continued, stating that “[t]he President's sweeping proclamation power thus provides a safeguard against the danger posed by any particular case or class of cases that is not covered by one of the categories in [the old section 212].” Interestingly, these footnotes were penned by then Judge Ruth Bader Ginsburg, who is now a Justice of the United States Supreme Court.

In Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980) [PDF version], the Ninth Circuit held that the President's authority to issue an EO preventing an alien from taking the examination for or given an appointment in civil service is derived from his powers over foreign affairs and treaty obligations, rather than from Congressional delegation. However, the Ninth Circuit cited to section 212(f) as an example of where Congress delegated authority to the President.

In Chen v. INS, 95 F.3d 801 (9th Cir. 1996) [PDF version], an alien sought to rely upon section 212(f) in part to show that a separate EO requiring enhanced consideration for victims of China's sterilization policy should be judicially enforceable. However, the Ninth Circuit held that section 212(f) pertains to suspending immigration and was not applicable to the alien's application for relief.

Understanding the Term “Entry”

Section 212(f) gives the President the authority to suspend or place conditions on the entry of any alien or class of aliens.

Section 212(f) was codified in 1952. However, the term “entry” is no longer employed in the INA.4 With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the definition of entry was stricken from the INA and replaced with the concept and definition of “admission.”5 The concept of entry had been pertinent when the INA statutory scheme distinguished between “exclusion” and “deportation,” as it did in 1952, and it was at issue in most of the cases discussed in the previous section. The current statutory scheme, however, is designed to distinguish between those who have been admitted into the United States and everyone else.

Under the current statutory scheme, section 101(a)(13) of the INA defines “admission” and “admitted” as “with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Persons who enter without inspection are treated as applicants for admission under section 235(a)(1). Under section 101(a)(13)(C), lawful permanent residents (LPRs) are generally not considered to be seeking admission upon return to the United States. (To learn more about when an LPR is considered to be seeking admission, please see our full article [see article] as well as our article about the abandonment of LPR status [see article].)

The concept of “entry” was slightly different. The Board of Immigration Appeals (BIA) summarized the concept of entry in the Matter of Z-, 20 I&N Dec. 707 (BIA 1993) [PDF version] as requiring:

  1. A crossing into the territorial limits of the United States;
  2. (a) Inspection and admission by an immigration officer; or (b) Actual and intentional evasion of inspection at the nearest inspection point; and
  3. Freedom from official restraint.

The Board also held in the Matter of Z- regarding the “entry” statute in the old section 101(a)(13) that, where an alien does not have a colorable claim to LPR status, the burden resides with the alien to establish that he or she “entered” the United States and should therefore be subject to deportation proceedings rather than exclusion. The INA at the time defined entry as encompassing “any coming of an alien into the United States, from any foreign port or from an outlying possession, whether voluntary or otherwise.”6

“Admission” requires “lawful entry,” and it is therefore a narrower concept than “entry.” Under the previous statutory scheme, certain entries would constitute admission under the current rules while other entries would not. The “entry” provision included what would now be “entry without inspection,” which under the current rules would leave the alien to be regarded as seeking admission.

In the Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) [PDF version], the Board discussed prior interpretations of “entry” and “admission,” with specific reference to the Supreme Court decision in Sale, which in 1993 had addessed President George H.W. Bush's order suspending of entry for aliens coming to the United States by sea without proper documentation, and for the interdiction of certain vessels carrying such aliens (see above). In Rosas-Ramirez, the Board held that Congress had maintained in section 212(f) the prior definition of “entry” to the extent that an “admission” constitutes “lawful entry.”

In an unpublished decision titled Sesay v. INS, 74 Fed.Appx. 84 (2d Cir. 2003), the Second Circuit held that an individual subject to suspension of entry under section 212(f) was ineligible for asylum despite being physically present in the United States. The Second Circuit deferred to the BIA's decision that the petitioner was ineligible for asylum because his entry was barred under section 212(f).7 However, note that because this is an unpublished decision, it is not binding on future cases arising from the Second Circuit.

Applicability of the Provision to Permanent Residents

Section 212(f) explicitly gives the President the authority to deny “entry” to “immigrants.” Nevertheless, there are interesting questions regarding the potential applicability of section 212(f) to those with immigrant visas. These questions are currently being adjudicated with regard to President Trump's Executive Order 13769.

Under current law, an LPR is only considered to be seeking admission under limited circumstances. This means in general, unless covered by section 101(a)(13)(C), immigration officials do not make admissibility determinations for returning LPRs because returning LPRs are usually not candidates for admission.

Under the pre-1996 statutory scheme, the Supreme Court held Rosenberg v. Fleuti, 374 U.S. 449 (1963) [PDF version] that an LPR who had made an “innocent, casual, and brief” trip abroad that was not meaningfully disruptive of LPR status was not deemed to be making an “entry” for purpose of U.S. immigration laws upon return. However, the use of the word “entry” in Fleuti serves to call into question the scope of 212(f) as applied to persons in possession of valid immigrant visas returning from an “innocent, casual, and brief” trip abroad under the statutory scheme in effect in 1963. Under Vartelas v. Holder, 566 U.S. 257 (2012) [PDF version], the Supreme Court held that Fleuti does apply to pre-IIRIRA convictions for trips abroad that occur after IIRIRA's effective date. There is question to whether Fleuti continues to hold sway outside of the context of an LPR with a pre-IIRIRA conviction. In Vartelas, the Supreme Court declined to decide whether the IIRIRA abrogated Fleuti. The BIA held in the Matter of Collado, 21 I&N Dec. 1061, 1068 (BIA 1998) [PDF version] that Fleuti “does not survive the enactment of the IIRIRA as a judicial doctrine” because the INA no longer defines “entry” and now specifies when an LPR is considered to be seeking “admission.” Thus, for administrative purposes, the Board and the Immigration Courts do not apply Fleuti. However, the Supreme Court left the question open for future litigation.

LPRs have been found to have full constitutional due process rights when returning or seeking admission. In Landon v. Plansencia, 429 U.S. 21 (1982) [PDF version], the Supreme Court held that an LPR who was considered to be making an admission and who was subject to exclusion proceedings was entitled to due process.8 In Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) [PDF version], the Supreme Court held that LPRs are persons “within the protection of the Fifth Amendment.” In Rafeedie v. INS, 880 F.2d 506 (D.C. Cir 1989) [PDF version], the D.C. Circuit held that an LPR was not subject to summary deportation. Furthermore, the D.C. Circuit held that an LPR who was denied reentry was nevertheless entitled to due process prior to deportation.

In short, there is clear precedent that an LPR is generally not considered to be seeking admission — unless he or she falls under specified circumstances in section 101(a)(13)(C) — and that LPRs have Fifth Amendment due process rights. The broad language of section 212(f) thus poses an interesting question of the extent to which it may apply or may already have been applied to an LPR.

It seems evident that where an LPR is regarded as seeking admission, section 212(f) may apply, although it would seem from extensive precedent that such an LPR would still be entitled to due process. Section 212(f) can certainly apply to applicants for immigrant visas. Whether it can apply to an LPR who is returning and not seeking admission is questionable. This is because under section 101(a)(13)(C), an LPR being covered by a Presidential Proclamation under section 212(f) would not cause the LPR to be considered to be seeking admission.

It is our position that section 212(f) should not apply to an LPR who is not seeking admission, notwithstanding the Trump Administration's initial position as reflected in the EO. First, under current law, the Matter of Pena, 26 I&N Dec. 613 (BIA 2015) [PDF version], a returning LPR who is not seeking admission under section 101(a)(13)(C) cannot be found to be inadmissible upon landing in the United States. Secondly, although the Board no longer believes that Fleuti holds sway, it remains Supreme Court precedent. Fleuti specifically lists the circumstances in which a returning LPR cannot be considered to be making an “entry,” which is the term employed in section 212(f) and which is broader than the definition of “admission.” Because section 212(f) applies to suspending “entry,” Fleuti would seem to prevent a Presidential Proclamation from denying entry to an LPR who is not considered to be making a new entry. However, it is important to note that there is pending litigation on that very question, and the courts may begin to resolve this question in the coming weeks and months. We discuss this issue further in our blog on the legality of President Trump's EO [see blog].

Scope of “Detrimental to the U.S. Interest”

In order to suspend or restrict the entry of any aliens or class of aliens, the President must find that the entry of such aliens is detrimental to the interests of the United States. To date, no courts have rendered any restrictions on the President's authority in this area. To see a list all 43 uses of section 212(f) from President Reagan to President Obama, please see pages 6-10 (of the document, not the PDF) of the following report produced by the Congressional Research Service [PDF version].9

While the President has sweeping authority under section 212(f), it is most likely not limitless. For example, the Congressional Research Service report cited above suggests types of restrictions that may receive scrutiny from courts:

  • Suspension of all immigration to the United States; or
  • Suspension based on religion.

In light of President Trump's EO, some have argued that a suspension based on nationality contravenes amendments made to the INA in 1965.10

The litigation regarding President Trump's EO, as well as any legislation that follows from Congress, may help clarify or narrow the scope of the President's power under section 212(f). For further opinions on this issue, please see our blog on the legality of President Trump's EO [see blog].

Because section 212(f) places no discernable limits on the President's discretion, the provision should be read as giving the President extremely broad discretion. An action under section 212(f) would be clearly problematic if the President failed to identify that the entry of the proscribed aliens was not in the national interest. It would also be potentially problematic if an action under section 212(f) was clearly opposed to Congress's intent in enacting other provisions of the INA (see e.g., a suspension of all immigration).11 Any suspensions that appear to conflict U.S. treaty obligations or the U.S. Constitution would be viewed with scrutiny as well.

Related Provisions

Sections 214(a)(1) and 215(a)(1) of the INA also provide the President with broad discretionary authority to restrict the entry and/or admission of aliens into the United States. Notably, President Jimmy Carter's restrictions on Iranian visa holders — notably student visa holders — were implemented under section 215(a)(1) rather than section 212(f). Several of the Presidential Proclamations issued under section 212(f) have also cited to sections 214(a)(1) and 215(a)(1).

Please see our full article to learn about sections 214(a)(1) and 215(a)(1).

Conclusion

Section 212(f) provides the President with sweeping power to suspend the entry of or place restrictions on the entry of immigrants and nonimmigrants for whatever period he or she deems necessary, provided that the President determines that such entry would be detrimental to U.S. interests. Because of the generally limited scope of the uses of section 212(f), it has not been often litigated. President Trump's recent EO may help shed more light onto the extent and limitations of Presidential Proclamations issued under section 212(f).

If an alien is found to be subject to section 212(f), he or she should consult with an experienced immigration attorney immediately for guidance.

_____________________

  1. Manuel, Kate M. Executive Authority to Exclude Aliens: In Brief. (CRS-7-5700). Washington, D.C.: Congressional Research Service, 2016. https://fas.org/sgp/crs/homesec/R44743.pdf, 5
  2. Id. 5 (ftn. 33)
  3. The judgment in Abourezk v. Reagan was affirmed by an equally divided Supreme Court in Reagan v. Abourezk, 484 U.S. 1 (1987) [PDF version].
  4. Manuel 1 (ftn. 4)
  5. Kurzban 61
  6. Manuel 4, INA 101(a)(13), 8 U.S.C. 1101(a)(13) (1994)
  7. Id. 5
  8. Id. 2
  9. Id. 6-10 (see ftn 1 of this article for the full citation) [Uses by President: Reagan (5); GHW Bush (1); Clinton (12); GW Bush (6); Obama (19); and Trump (1)
  10. Brier, David J., “Trump's Immigration Ban Is Illegal,” nytimes.com, (Jan. 27, 2017). But see McCarthy, Andrew C., “Trump's Exclusion of Aliens from Specific Countries is Legal,” nationalreview.com, (Jan. 28, 2017). Manuel 6 (“Distinctions between aliens based on nationality, in contrast, have historically been viewed as a feature of immigration legislation and subjected to deferential 'rational basis' review by the courts”)
  11. Manuel 6